Federal Government Requires Small and Mid-Size Employees Provide Paid Sick Leave and Expanded Paid FMLA Leave for Public Health Emergencies

On March 18, 2020, President Trump signed the Families First Corona Virus Response Act. The Families First Act requires small and midsized employers to provide paid sick leave benefits and expanded FMLA leave to employees needing time away from work due to COVID-19 reasons. While the Act provide others benefits, the FMLA Expansion Act and Emergency Paid Sick Leave Act are summarized here.

Family and Medical Leave Expansion Act

The Emergency Family and Medical Leave Expansion Act also takes effect on April 2, 2020 and expires on December 31, 2020. The Act requires covered employers provide up to 12 weeks of FMLA leave for a qualifying need related to a public health emergency.

Covered Employers and Eligible Employees

Most private employers with fewer than 500 employees are covered by the Act. Employees eligible to take public health emergency leave are employees who have been employed for at least 30 calendar days by the covered employer when public health emergency leave is requested.

Leave under the Act is allowed for a qualifying need related to a public health emergency. A qualifying need related to a public health emergency means the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency which includes an emergency with respect to COVID-19 declared by the Federal, State or local authority.

Pay While on Leave

The first 10 days of public health emergency leave may be unpaid. However, the Emergency Paid Sick Leave Act may provide an eligible employee with pay during this time period. After the initial 10 day period, the employer must pay the employee at a rate not less than 2/3 the employee’s regular rate of pay for the balance of the FMLA leave not to exceed $200 per day and $10,000 in the aggregate.

Restoration of Position

Employees of employers with 25 or more employees are entitled to be restored to an equivalent position at the end of their leave. Employees of an employer with fewer than 25 employees are not entitled to job restoration if the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that affect employment; and are caused by a public health emergency during the period of leave.

In that case, the employer must make reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment. If these reasonable efforts to find an equivalent position fail, the employer must continue to make reasonable efforts to contact the employee if an equivalent position becomes available. This contact period runs from the 1-year period beginning on the earlier of the date on which the qualifying need related to a public health emergency concludes; or the date that is 12 weeks after the date on which the employee’s leave commenced.

Employers will be entitled to take certain payroll tax credits for payment of required paid family leave and paid sick leave.

Emergency Paid Sick Leave Act

The Emergency Paid Sick Leave Act requires most employers having fewer than 500 employees to provide up to 80 hours of paid sick leave taken for full time employees (part time employees receive the number of hours they worked on average over a 2 week period) who are unable to work for certain COVID-19 caused absences. Employees are immediately eligible to take paid sick leave under the Act regardless of how long the employee has been employed by the employer.

Permissible Uses of Sick Leave

A covered employer shall provide paid sick leave to each eligible employee to the extent that the employee is unable to work (or telework) due to a need for leave because:

(1) The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.

(2) The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.

(3) The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.

(4) The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).

(5) The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.

(6) The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

When an employee is taking leave for a qualifying reason, the employer cannot require the employee to search for or find a replacement employee to cover the hours that the employee is using paid sick time.

Amount of Pay

The amount of paid sick leave is calculated based on the amount of compensation the employee would otherwise been scheduled to work. The amount of compensation due for paid sick leave is capped at $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above and $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6).

Accrued, but unused paid sick leave is not paid on termination of employment and is not carried over into 2021.

Notice and Posting Provisions

Employers may require an employee follow its reasonable notice procedures in order to continue to receive paid sick leave after the first workday (or portion thereof) an employee receives paid sick time under this Act. Employers must post notice of the provisions of this Act and the Secretary of Labor is required to provide a model notice not later than April 7, 2020. The notice must be posted conspicuously in places where notices to employees are customarily posted.

Potential Narrow Exemption for Small Employers

The Secretary of Labor is given the authority to issues regulations to exempt small businesses with fewer than 50 employees when the imposition of such requirements would jeopardize the viability of the business as a going concern. It is unclear what procedures the Secretary will apply to grant industry-wide exemptions or exemptions on an employer-by-employer basis. Presumably, a small employer will have to petition the Secretary for an exemption, but this is unclear and may not be known until the Secretary issues the contemplated regulations.

The Act also contains anti-retaliation provisions that prohibit employers from retaliating for employee’s taking leave under the Act or because the employee filed a complaint under the Act.

About the Author

Russell Cawyer is a partner representing Texas employers in Kelly Hart & Hallman’s labor and employment practice group practicing out of the firm’s Fort Worth, Texas office. He has been board certified in labor and employment law by the Texas Board of Legal Specialization for nearly 20 years.

ABOUT KELLY HART & HALLMAN

For over 35 years, Kelly Hart & Hallman has provided some of the country’s most innovative and successful businesses, individuals and governmental entities with a full array of legal services. In those same 35 years, Kelly Hart has grown from five attorneys to over 140 practicing in more than twenty substantive areas of the law. We owe this success to our outstanding lawyers and unparalleled clients. We are proud of our past and excited about our future.